Part 35. Tax Court Litigation

Chapter 7. Tax Court Briefs

Section 1. Filing Tax Court Briefs

35.7.1
Filing Tax Court Briefs

35.7.1.1
(08-11-2004)Regular Tax Cases

The general rule is that, except in cases processed under the Small
Tax Case procedure, a brief is filed in each case submitted to the Tax Court.
In some instances in which a case is tried and processed under regular procedures,
the judge may specifically state that briefs are not desired. In these limited
instances, the Field attorney should consider the issues, evidence, and other
circumstances relating to the importance of the case and decide whether permission
to file briefs should nevertheless be requested. If it is concluded not to
request permission to file a brief, consideration should be given to either
requesting permission to make an oral argument or to file a memorandum of
authorities.

35.7.1.2
(08-11-2004)Small Tax Cases

The filing of a brief, a memorandum brief, or a memorandum of authorities
may be very important in an "S"
case if the court has
earlier denied respondent’s motion to remove small tax case designation.
If the Tax Court declines permission to file briefs in any regular case and
in any "S"
case that the court refused to process under
the regular procedure, and Field Counsel believes that briefs are necessary,
Field Counsel should notify Division Counsel, who will determine whether additional
action needs to be taken in the case.

35.7.1.3
(08-11-2004)Types of Briefs

The Tax Court’s rules set forth the general requirements for briefs
and should be followed explicitly in their preparation. See
T.C. Rule 151.

35.7.1.3.1
(08-11-2004)Formal Briefs

Respondent’s briefs are of the following types and carry the following
headings: Brief for Respondent, which denotes that simultaneous briefs are
being filed by the parties; Opening Brief for Respondent, which denotes that
the court ordered seriatim briefs, with respondent’s brief due first;
Respondent’s Answering Brief, which denotes that under the order of
the court, the petitioner filed a seriatum opening brief and the respondent
is filing an answering brief, after which the petitioner will file a reply
brief; and Reply Brief for Respondent, which denotes both respondent’s
reply brief to a simultaneous original brief, and respondent’s reply
brief to petitioner’s seriatum answering brief. Additionally, a Surreply
Brief may be filed, with permission of the court, when a party desires to
respond to a reply brief.

35.7.1.3.2
(08-11-2004)Informal Briefs

If the court specifically indicates that a formal brief is not desired,
a Memorandum of Authorities may be filed, with permission of the court. This
document will rarely be ordered in regular cases and, in these cases, should
be reviewed in the appropriate Associate offices if it involves issues which
must be submitted to such offices for review. See CCDM
35.7.3.2. In such cases the document should be accompanied by the legal and
miscellaneous law files.

A memorandum of authorities should contain a brief recitation of the
issues, respondent’s position, reference to the pertinent Code and Regulation
sections, and a general discussion of the applicable law.

The memorandum of authorities should incorporate the facts established
at the trial. The extent of discussion of the facts in a memorandum prepared
prior to trial and submitted at trial will depend upon the nature of the case
and the stipulation of facts.

35.7.1.3.3
(08-11-2004)Stand Alone Proposed Findings of Fact

In some instances the court may request the parties to file proposed
findings of fact as a stand alone document. This document is headed Respondent’s
Proposed Findings of Fact. It is rarely used, and when requested by the judge,
it is preferable to include, in addition to the proposed findings of fact,
the ultimate facts desired by the respondent and a memorandum of authorities
on the issues involved.

35.7.1.3.4
(08-11-2004)Memorandum Briefs

A memorandum brief is headed Memorandum Brief for Respondent. It is
used primarily in connection with motions and, in some instances, for cases
tried under the "S"
case procedures. A memorandum brief
may be used as an attachment to, and in support of, a motion by respondent
when it is necessary to enlarge upon the grounds for granting the motion beyond
those set forth in the motion. It also may be used in opposition to a petitioner’s
motion when it is advisable to inform the court in writing of the respondent’s
position, either prior to the argument on a petitioner’s motion or at
a hearing. Upon the completion of an oral argument on a motion, the court
sometimes requests a memorandum brief on the legal points involved. The use
of this type of brief in tried cases is unusual except for cases coming under
the "S"
case procedures.

The form of a memorandum brief depends upon the number of legal points
discussed, its length, and the purpose for which it is prepared. If only a
single legal issue is involved, the Contents page may be omitted. If few cases
are cited, the Citations page may also be omitted. The Questions Presented
page is generally omitted unless a number of issues are argued. The section
for Respondent’s Request for Findings of Fact is omitted, and the pertinent
facts are summarized in the beginning of the Argument on each issue. The Points
Relied upon section is also usually omitted. The Preliminary Statement section
is omitted, but the opening paragraphs of the brief should contain statements
as to how the issues arose before the court and the reasons for filing the
brief. A Conclusion is included as in a regular brief. There are no definite
rules for its preparation. Before preparing a memorandum brief in a tried
case, the attorney should discuss the matter with the reviewer in order to
reach an understanding about the form and content of the brief.

35.7.1.3.5
(08-11-2004)Reply Brief

In the opinion of a number of the judges of the Tax Court, a reply brief
considerably strengthens the party’s case. This factor should be borne
in mind in the preparation of the brief. Because the reply brief addresses
the arguments and contentions made by petitioner, the court is not left with
any uncertainty as to the position of the respondent on any new phases of
the case. No assumption can therefore be made by the court as to the abandonment
by the respondent of any point in the case. Furthermore, if an argument is
not fully and completely made in the original brief, such argument can, and
should, be strengthened in the reply brief.

When simultaneous briefs are filed by the parties, a reply brief will
be filed by the respondent in virtually all cases. The attorney cannot assume
that merely because respondent’s requested findings and arguments are
contrary to or incompatible with petitioner’s requested findings and
arguments, respondent’s original brief has answered the petitioner’s
brief. The inconsistencies between petitioner’s and respondent’s
requested findings and arguments should be specifically handled in the reply
brief. The reply brief should also make clear to the court that respondent
is not abandoning or conceding any issues. This can be done in two ways: by
addressing each issue in the reply brief or by including a disclaimer. The
disclaimer should state, for example, that failure to address issues covered
in the opening brief does not constitute a concession or abandonment of those
issues, that the reply brief is confined to matters not previously discussed
or requiring clarification, and that the opening brief adequately covers the
relevant factual and legal arguments for the issues not discussed.

While the general rule is that reply briefs should be filed in all cases
in which simultaneous original briefs are filed by the parties, there are
instances in which a reply brief is not necessary. These exceptions will be
rare, and any doubt should be resolved by Field Counsel in favor of filing
a reply brief. No specific guidelines can be laid down which will be applicable
in all cases. A reply brief certainly should be filed in instances in which
the parties are not in accord in their requested findings of fact. In this
instance the court should be advised as to those requested findings of the
petitioner with which we are in accord and as to those requested findings
with which we are not in accord. The reasons for the disagreement should be
stated. A reply brief should also be filed in instances in which petitioner’s
arguments are based upon points, facts, statutory provisions, or case law
which have not been fully and completely covered in respondent’s original
brief. This is a troublesome area, and while respondent’s original brief
may have included to some extent an argument dealt with more fully in petitioner’s
brief, it is often necessary, or at least desirable, to enlarge upon such
arguments, without unnecessary duplication, in a reply brief. It should never
be assumed that petitioner’s argument is facetious or lacks substance;
such factor should be respectfully and in a proper manner pointed out to the
court in a reply brief. Furthermore, it must be kept in mind that some judges
of the court specifically require the filing by the parties of reply briefs;
these requirements must be strictly complied with in all instances. There are
other judges who do not specifically request the parties to file a reply brief.
Judges may, however, give consideration to the failure of one party or the
other to reply to the opponent’s requested findings of fact and arguments.

In some cases, a reply brief may not be necessary due to the nature
and contents of petitioner’s brief and the requested findings and arguments
of respondent’s original brief. A decision not to file a reply brief
should be made by the Field attorney in consultation with the reviewer. After
such a determination, Field Counsel will prepare, within the due date for
filing a reply brief, a document entitled Notice of Intent Not to File Reply
Brief. See Exhibit 35.11.1–121. If the original
brief was filed directly with the court by Field Counsel, the Notice of Intent
Not to File Reply Brief should be signed in Field Counsel and filed directly
with the court. If the original brief was reviewed by an Associate office,
the notice of intent, together with the legal file containing copies of the
transcript and the parties’ original briefs, should be sent to that
Associate office for review.

35.7.1.3.5.1
(08-11-2004)Form and Contents

No definite rules apply for the preparation of a reply brief, as each
case must be briefed in accordance with the issues involved, the disagreement
between the parties on the requested findings of fact, and argument on the
legal points. In cases in which there is a wide area of disagreement between
the parties on both the findings of fact and the legal conclusions to be drawn
from the facts, the contents of the reply brief should be in the form of an
answering brief. The answering brief should not duplicate the matter contained
in the original brief. In this instance the headings would be as follows:

Contents and Citations. In accordance with T.C. Rule 151(e)(1), all briefs
should contain contents and citations pages. See CCDM
35.7.2.1.2 and CCDM 35.7.2.1.3.

Preliminary Statement. This should be a short and concise statement of
the nature of the document. Reference should be made to the original brief,
and the due date of the reply brief given.

Respondent’s Objections to Petitioner’s Proposed Findings
of Fact. The contents under this heading of the reply brief should be in the
form and substance required by T. C. Rule 151(e)(3). When deemed necessary,
a request for alternative findings of fact may also be included.

Argument. Petitioner’s legal argument should be answered.

Conclusion and Execution. See CCDM 35.7.2.1.9 and
CCDM 35.7.2.1.10.

35.7.1.3.5.2
(08-11-2004)Discretionary Review

In some cases, upon review of an opening brief by an Associate office,
the Associate office may determine that the reply brief should be sent in
for review prior to filing with the court. Conversely, there will be instances
where it is determined by an Associate office that a reply brief need not
be sent in for review prior to filing. In either event, the initialed copy
of every opening brief reviewed in an Associate office will specifically designate
one of the options referred to on being returned to Field Counsel. If the
designated preference is that the reply brief need not be sent in, the procedures
of CCDM 35.7.3.3, relating to directly filed briefs, will apply to the reply
brief.

If the designated preference on the initialed copy of respondent’s
opening brief is to send in the reply brief, the Field reviewer has the discretion
to forward a copy of petitioner’s opening brief to the appropriate Associate
office with a memorandum stating the reasons why the Field reviewer believes
it is unnecessary that respondent’s reply brief be reviewed by the Associate
office prior to filing in the Tax Court. If the Field reviewer elects to do
so, Field Counsel’s memorandum and copy of petitioner’s opening
brief should be sent to the Associate office within five days of its receipt
in Field Counsel. Following that election by Field Counsel, the Associate
office will have five days from the receipt of Field Counsel’s memorandum
to notify Field Counsel that it wants to review respondent’s reply brief
before filing. If the Associate office subsequently agrees that direct filing
should be permitted, it will so notify Field Counsel within five days and
the provisions of CCDM 35.7.3.3 will apply to the reply brief.

An Associate office may designate as its preference that a copy of petitioner’s
brief be sent in with a memo. That option will generally be checked when the
Associate office is uncertain whether it would prefer to review the reply
brief before filing. If the designated preference on the initialed copy of
respondent’s opening brief is to send in a copy of petitioner’s
original brief with memo, Field Counsel shall, within 5 days of receiving
the original brief, submit a copy thereof to the Associate office accompanied
by a memorandum stating reasons why respondent’s reply brief need not
be reviewed in the Associate office prior to filing. The Associate office
will have five days from the receipt of Field Counsel’s memorandum to
notify Field Counsel that it wants to review the reply brief. If the Associate
office agrees that direct filing should be permitted, it will so notify Field
Counsel within five days and the provisions of CCDM 35.7.3.3 will apply.

Following receipt of the petitioner’s opening brief, situations
will occur in which Field Counsel believes it appropriate to have the Associate
office review respondent’s reply brief before filing with the Tax Court.
This may occur when the designated preference of the Associate office is to
not send in a copy of the reply brief. Similarly, it may occur when the designated
preference is to send in a copy of petitioner’s opening brief with a
memo. It may also occur when the Associate office did not review respondent’s
opening brief. See CCDM 35.7.3.3. Accordingly, in any
case that Field Counsel determines the Associate office review prior to filing
the reply brief is advisable, Field Counsel need not submit a copy of petitioner’s
opening brief even if the Associate office has designated its preference on
the initialed copy of respondent’s opening brief to send it in with
a memo. In that event, the provisions of CCDM 35.7.3.2 apply and respondent’s
reply brief should be received for review not later than seven calendar days
prior to the due date.

The designation of a preference with respect to respondent’s reply
brief is made prior to receipt of the petitioner’s simultaneously filed
original brief. Accordingly, the foregoing provisions of this section do not
apply if the question to be decided is whether to file any reply brief. See CCDM 35.7.1.3.5.

35.7.1.3.6
(08-11-2004)Supplemental Briefs

A supplemental brief may be of two types. One is a formal document in
the nature of a reply brief which is filed after respondent has filed the
briefs permitted by the rules of the court. This document must be accompanied
by a motion for leave to file. The other and most frequent type of supplemental
brief is in the form of a letter addressed to the trial judge and which simply
calls the court’s attention to a recent decision on point or distinguishes
a case or cases relied upon by petitioner in a reply brief or by petitioner
in a supplemental brief to the court. The letter form of supplemental briefs
may not be used if its purpose is to answer in detail a new argument raised
by the petitioner in a reply brief. Both forms of supplemental briefs are
reviewed in the appropriate Associate office to the same extent as any other
brief.

35.7.1.3.6.1
(08-11-2004)Necessity for Filing

If after the submission of respondent’s answering brief or respondent’s
reply brief a case is decided which is particularly applicable to the issue
or issues involved, a proposed letter should be promptly prepared by Field
Counsel, addressed to the trial judge, calling attention to such case. Also,
if petitioner, after filing a brief, has written to the judge calling attention
to a recently decided case and such case is believed distinguishable, a proposed
letter to the judge should be promptly prepared by the Field attorney distinguishing
the recent case relied upon by the petitioner. If the case cannot be satisfactorily
distinguished, the matter should be promptly referred to the appropriate Associate
office with a memorandum setting forth the views of Field Counsel thereon.
Upon receipt of the views of Field Counsel, further consideration will be
given the matter by the Associate office which will reach a decision on the
action to be taken in the case.

A supplemental brief must be filed with the court as soon as possible
after the occasion arises necessitating its filing. If in letter form, the
original and all copies of the proposed letter to the judge will provide for
a copy thereof, after execution, to be forwarded to the petitioner’s
counsel or to the petitioner, as appropriate. If any of the issues addressed
require review by the Associate office, Field Counsel will forward the letter
to the appropriate Associate office for review. After review by the Associate
office, a copy will be forwarded to the petitioner’s counsel or to the
petitioner, as appropriate, simultaneously with forwarding the original to
the judge.

35.7.1.3.6.2
(08-11-2004)Formal Type

The formal type of supplemental brief rarely will be used. When used,
it will have the heading Supplemental Brief for Respondent and will be in
memorandum form, without all of the formalities of a regular brief. It will
contain the necessary headings to indicate to the court the reasons for its
filing and to divide the points or items to which the argument contained therein
is applicable. The exact format to be used will depend upon the particular
circumstances of the case. The number of copies for this type of brief will
be the same as for regular briefs. If any of the issues addressed require
review by the Associate office, Field Counsel will forward a formal supplemental
brief to the appropriate Associate office, together with a motion for leave
to file, setting forth the reasons for the filing of the supplemental brief.